124 P. 256 | Or. | 1912
delivered the opinion of the court.
The chapter on appeals opens with Section 548, L.O.L.:
“A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order áffecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right and made in a proceeding after judgment or decree, or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree.”
Section 550, L. O. L., prescribes that “an appeal shall be taken and perfected in the manner prescribed in this section, and not otherwise * *”
After providing for giving oral notice at the time of the rendition of the judgment or afterwards by a writing,
(4) “From the expiration of the time allowed to except to the sureties in the undertaking, or from the justification thereof, if excepted to, the appeal shall be deemed perfected. * *”
(5) “An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, shall be taken by serving and filing the notice of appeal within six months from the entry of the judgment, order, or decree appealed from, * * and not otherwise.”
Prior to the act of February 25, 1907, a motion for new trial was filed within one day after the giving of a verdict or other decision sought to be set aside. Section 175, B. & C. Comp. The filing of a motion for new trial within the time prescribed ipso facto delayed the entry of judgment until the motion should be disposed of. Section 201, B. & C. Comp. Under the former practice, therefore, the order of procedure was first the verdict, then the motion for new trial, and after that the judgment. The act of February 25, 1907, changed this, so that now we have the judgment and next a motion for new trial, to be filed within one day after the judgment, or such further time as the court may allow. Section 175, L. O. L.
In the new procedure devised in 1907, the legislative assembly omitted all the former provision about delaying the entry of judgment until the disposition of the motion for new trial. There is nothing in the new statute giving any effect to such a motion as a suspension of the
The recorded proceeding of the court, of March 8, 1910, was a judgment. It cannot, in the nature of things, be anything else. In that name alone it is appealable, without reference to other court transactions, enumerated as judgments in Section 548, L. O. L. It is the one act of the court, above all others, from which an appeal can be had; and whenever such a proceeding is undertaken it must be pursued in the manner and at the time prescribed
The act of February 21, 1911 (Laws of Oregon 1911, p. 195), is in effect a legislative construction in harmony with this view; for the legislature by that statute undertook to validate such appeals as this, but in an unconstitutional manner, as pointed out in McCartney v. Shipherd, 60 Or. 83 (117 Pac. 814), and added the proviso that “nothing herein contained shall be deemed to authorize any appeal to be hereafter taken to the Supreme Court from any judgment of any circuit court granting or denying a motion to set aside the verdict and for a new trial unless such appeal be taken within six months from the date of the original entry- of judgment.” This view, although not conclusive, is of great moment in construing the- earlier statute of 1907. The legislative assembly must have construed appeals of the kind under consideration as unavailing in the first instance, or it would not have
Counsel suggests a paradoxical situation, which might present itself if an aggrieved party, tired of waiting for a circuit court decision of his motion, should appeal from the judgment, succeeding which the circuit court should sustain the motion and this court affirm the judgment. We are not required to, and do not, decide a question not involved in the record before us; but it is suggested that if, within thirty days after the appeal is perfected, the transcript is filed here, as laid down in Section 554, L. O. L., this court would acquire a jurisdiction which might prevail in case of conflict with that so asserted by the circuit court. The illustration so ably pressed upon our attention might be persuasive, if addressed to a lawmaking body, actuated by a purpose to prolong litigation, but that is not the situation here. In brief, the statute declaring the time within which an appeal can be taken has not been altered from the form in which it has existed for more than forty years; and we cannot by judicial construction change it, or the practice which has become so well settled under it. That task must be left to the lawmaking power.
In the present case all the errors complained of in the motion for new trial were available to plaintiffs on appeal by means of a bill of exceptions; and if they chose to experiment with the circuit court they cannot thereby prolong the time within which, if they would, they must come to this court.
It is not practical, within the limits of an ordinary opinion, to analyze or distinguish all the precedents arising under as many different statutes as there are states in the union, and we here note only the following: Railroad Co. v. Doane, 105 Ind. 92 (4 N. E. 419), was decided under a statute which contains a proviso “that if a motion for
“No appeal can be taken by either party, plaintiff or defendant, to this court from the judgment of an inferior court in a case like this, without first making a motion for a new trial in the court where the error complained of occurred. Upon the hearing of the motion, if overruled, the party complaining files his bill of evidence, and is then in condition to bring his case to this court, and not before.”
In the case at bar the-motion for a new trial was not a condition precedent to an appeal. It could have been taken without filing the motion, relying upon the bill of exceptions to disclose the errors complained of: State ex rel. v. Chapman, 35 Wash. 64 (76 Pac. 525), relied upon by plaintiffs, is. based upon a statute, quoted in the opinion, providing “that if a motion for new trial shall be filed execution shall not be issued upon the judgment until said motion shall be determined.” Plaintiffs count much upon decisions of the United States Supreme Court, like Brockett v. Brockett, 2 How. (U. S.) 238 (11 L. Ed. 251), holding, in substance, that no appeal would lie until the motion for new trial was decided. That case also depends upon Section 987, 3 Fed. Stat. Ann. 45 (U. S. Comp. St. 1901, p. 708), as follows:
“When a circuit court enters judgment in a civil action either upon a verdict or on a finding of the court upon the facts, in cases where such finding is allowed, execution may on motion of either party at the discretion of the court and on such conditions for the security of the*169 adverse party as it may judge proper be stayed forty-two days from the time of entering judgment to give time to file in the clerk’s office of said court a petition for a new trial. If such petition is filed within said term of forty-two days with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discretion, execution shall of course be further stayed until the next session of the said court. If a new trial be granted the former judgment shall be thereby rendered void.”
The motion, having been filed there by permission, operates as a stay until its decision.
There are, indeed, precedents, under statutes very similar to our own, holding that the judgment^ is not appealable until the final disposition of the motion; but their reasoning seems to be largely legislative, rather than judicial, and does not appeal to us as controlling. As opposed to them, the following cases are noted: Sholty v. McIntyre, 136 Ill. 33 (26 N. E. 655) ; Doorley v. Manufacturing Co., 5 Okl. 594 (49 Pac. 936) ; Burchinell v. Bennett, 10 Colo. App. 150 (50 Pac. 206) ; Hill v. Hill, 114 Mich. 599- (72 N. W. 597) ; Cooper v. Yoakum, 91 Tex. 391 (43 S. W. 871) ; Manes v. Hoss, 28 Okl. 489 (114 Pac. 698).
Adhering.to our former ruling on this question in McCartney v. Shipherd, 60 Or. 133 (117 Pac. 814), which plaintiffs admit is adverse to their contention, the appeal is dismissed. Dismissed.